Archive for month: August, 2018

In the Northern Hemisphere, September 22nd marks the end of Summer, not Labor Day. Many think of Labor Day as the end of Summer because many schools start just before or just after Labor Day, and the weather starts cooling off. It is also the last Federal Holiday before the end of Summer.

Original article by Robert Nuddleman

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

https://nuddleman.com/wp-content/uploads/2018/08/last-summer-1564021-640x320.jpg320640Robert Nuddlemanhttp://nuddleman.com/wp-content/uploads/2015/07/Nuddleman_LH_11.jpgRobert Nuddleman2018-08-30 09:11:542018-08-30 09:11:54Labor Day is NOT the End of Summer

California Rejects De Minimus Time

Four minutes a day might seem inconsequential, right? Not to the California Supreme Court. In Troester v.Starbucks Corporation, the Court held that employers are required to compensate employees for short, unrecorded periods of time worked off the clock. Such de minimus time, which can add up to substantial time over weeks, months, or years, must be compensated if it occurs “on a regular basis or as a regular feature of the job.” Tasks such as locking up, shutting down computers, or setting the alarm must be compensated under California law.

Unlike Federal Law, California Does Not Have a De Minimus Exception

California’s stricter, more worker-friendly, employment laws supersede federal statutes like the Federal Labor Standards Act. Federal labor law and Supreme Court precedent carve out exceptions for “de minimus” work by employees. This provides some leeway for businesses to avoid compensation for seemingly inconsequential work. However, California law doesn’t contain a de minimus exception. In fact, California specifically requires compensation “for all hours worked.” That puts a requirement on employers to compensate employees for small fragments of time that easily slip through the cracks in the course of the workday. California employers must comply with California law and the FLSA.

What Does This Case Mean For Employers?

Troester does not require employers to track every fraction of a second. There are many instances of work so minuscule, difficult to track, or irregular that it would be nearly impossible to record and compensate. But wait, isn’t that what de minimus time is? Employers must make every reasonable effort to track and compensate workers’ time. The employer bears the burden of ensuring fair and complete compensation. The Court suggests technological advances, restructuring of time recording practices, or even a time rounding policy to assist employers in meeting their obligation to compensate their workers. The Court reminds employers that the DLSE manual and opinion letters are merely “advisory” opinions, and do not hold the force of law. This case makes it clear, once again, that employers should exercise caution when it comes to paying employee wages.

Original article by JT Keane for the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

When an employee quits without notice, there is a myriad of considerations and consequences for an employer. Finding a replacement and keeping the business running smoothly is at the top of many employers’ minds. However, one of the most urgent tasks for an employer when someone unexpectedly quits should be compensating that employee. No matter how abrupt or disruptive an employee’s resignation is, California law requires compensation for all unpaid wages within 72 hours of resignation. That includes accrued vacation time. If an employer fails to comply, they are required by law to pay “waiting time” penalties, equivalent to the worker’s daily wage, for up to 30 days. A new court case, Nishiki v. Danko Meredith P.C., sheds more light on what specific obligations an employer has when an employee quits.

When Does the Clock Start Ticking for Waiting Time Penalties?

In Nishiki, the employee resigned by email on a Friday night, after the close of business. The Court held that it would be unreasonable and unduly burdensome on the employer to start the statutory 72-hour clock at 6:38 on a Friday night. According to the Court, in the pursuit of justice the law must be interpreted in a reasonable, common sense way that does not allow for unjust applications of the law. Employers don’t have to constantly check their email at all hours of the night or over the weekend to ensure compliance. The 72-hour clock starts when it can be reasonably assumed the employer received the resignation. This leaves a reasonable period for the employer to calculate and pay final wages.

Are Waiting Time Penalties Appropriate for Honest Mistakes?

Oh, what a difference a few dollars can make. In Nishiki, the employer made a clerical error, shortchanging the employee by $80. The employee argued this error, and the delay in correcting the error warranted waiting time penalties. The employer argued the error was not “willful,” and therefore did not owe penalties. The Court held the prolonged delay in correcting that error violated the Labor Code and awarded penalties. Employers should make every effort they can to comply with the law and correct any mistakes or errors as quickly as possible.

The Nishiki court awarded $2,250 in waiting time penalties. The court also directed the employer to pay $86,160 in attorneys’ fees. This should serve as a warning for employers and employees alike. Appealing Labor Commissioner decisions or lower court rulings in wage claims can be dangerous. The law discourages frivolous appeals. The appealing party must pay the other side’s attorneys’ fees if the appeal is unsuccessful. Fighting over relatively small amount may not be worth the risk of paying the other side’s fees.

Original article by JT Keane. Edited by Robert E. Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

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